FILED
NOT FOR PUBLICATION JUN 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYUNG M. CHOI, an individual, No. 12-56040
Plaintiff - Appellant, D.C. No. 2:09-cv-03792-GHK-
PLA
v.
RAY MABUS, Secretary of the United MEMORANDUM*
States Department of Navy, a United
States government officer,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Submitted June 2, 2015**
Pasadena, California
Before: FERNANDEZ, FISHER and BEA, Circuit Judges.
Kyung Choi appeals the district court’s summary judgment for the
government on her claims that she was discriminated against on the basis of race
and gender, and subjected to a hostile work environment, during her postdoctoral
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
fellowship at the Naval Air Warfare Center, Weapons Division (NAWCWD)
between May 2007 and May 2008. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. The district court properly concluded there is no triable issue as to
whether Choi was deterred from formally applying for a full-time position at
NAWCWD due to discriminatory practices. See Breiner v. Nev. Dep’t of Corrs.,
610 F.3d 1202, 1208 (9th Cir. 2010). The government provided evidence showing
Choi’s supervisors at NAWCWD decided not to consider her for a full-time
position because they received complaints about her lack of compliance with lab
safety guidelines, and were unsatisfied with her ability to publicly present her
work. Choi does not provide sufficient evidence to create a triable issue as to
whether those reasons were pretextual. See McDonnell Douglas v. Green, 411
U.S. 792, 804 (1973).
2. The district court properly concluded there is no triable issue as to
whether Choi was subjected to a hostile work environment. Choi’s claim is based
primarily on several inappropriate comments allegedly made by a co-worker, Dr.
Zach Sechrist. In the district court, Choi did not cite any evidence in her
opposition to the motion for summary judgment to show NAWCWD knew or
should have known about those comments. See Burlington Industries, Inc. v.
2
Ellerth, 524 U.S. 742, 768 (1998) (“If . . . the employee alleges a . . . hostile work
environment, the employer is liable only for negligence: that is, only if the
employer knew, or in the exercise of reasonable care should have known, about the
harassment and failed to take remedial action.”); Forsberg v. Pacific N.W. Bell Tel.
Co., 840 F.2d 1409, 1418 (9th Cir. 1988) (holding a district court is “not required
to comb the record to find some reason to deny a motion for summary judgment”).
On appeal, Choi cites her affidavit, in which she says she sent e-mails to her
supervisors to complain about Sechrist’s inappropriate comments. The record does
not contain copies of these alleged e-mails. But an e-mail that is in the record is
one she sent to a supervisor, complaining only about Sechrist’s work ethic and
alleging Sechrist falsely blamed her for causing a gas leak. Absent any supporting
evidence, her affidavit is insufficient to create a genuine issue of material fact. See
Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam) (“When the
nonmoving party relies only on its own affidavits to oppose summary judgment, it
cannot rely on conclusory allegations unsupported by factual data to create an issue
of material fact.”).
AFFIRMED.
3